“Impeachment” Of the Chief Justice: Aiyo! It Was Shirani That I Wanted To Appoint, My Good Friend
Elmore Perera
“Sovereignty of the Sri Lankan People under the 1978 Constitution is one and indivisible. It remains with the People. It is only the exercise of certain Legislative, Executive and Judicial powers of the Sovereign People that are delegated to the Parliament, the Executive and the Judiciary under Article 4. Fundamental Rights and Franchise remain with the People and the Supreme Court has been constituted the guardian of such rights.” So stated Hon.Neville Samarakoon Q.C. arguably the most honourable, upright and independent Chief Justice that Sri Lanka has been fortunate to have. This was in October 1983 when a 9-judge bench of the Supreme Court considered important questions that concerned the jurisdiction, dignity and the independence of the Supreme Court. Sharvananda J asserted that “Rule of Law is the foundation of the Constitution, and independence of the Judiciary and fundamental human rights are basic and essential features of the Constitution. There can be no free society without law administered through an independent Judiciary. The supremacy of the Constitution is protected by the authority of an independent judiciary to act as the interpreter of the Constitution. Actions of the Executive are not above the law and can certainly be questioned in a Court of Law. An intention to make acts of the President non-justiciable cannot be attributed to the makers of the Constitution”. The 9-judge bench held that “The President cannot be summoned to Court to justify his actions. But that is a far cry from saying that the President’s acts cannot be examined by a Court of Law. A party who invokes the acts of the President in his support will have to bear the burden of demonstrating that such acts of the President are warranted by Law. The seal of the President will not be sufficient to discharge that burden.”
The President expeditiously moved to impeach the Chief Justice with the aid of his steamroller 5/6th majority in Parliament. Article 107 of the 1978 Constitution, stipulates that the Chief Justice shall not be removed except by an order of the President made after an address of Parliament supported by a majority of the total number of MPP has been presented to the President for such removal on the ground of proved misbehavior or incapacity, provided that the notice of such resolution for the presentation of such address was signed by not less than one-third of the total number of MPP and sets out full particulars of the alleged misbehavior or incapacity. Standing Order 78A relating to the presentation of such an address, sets out the procedure for the passing of such resolution, the investigation and proof of the alleged misbehavior or incapacity and the right of the Chief Justice to appear and to be heard in person or by representative.
